SEC’s latest prosecution: it is possible to pursue individual auditors for missing signs of fraud they should have caught; SEC steps up enforcement actions against CPAs for cooking books; BDO to Pay $2.1 Million to Settle SEC Charges over False and Misleading Audit Opinions

http://ftalphaville.ft.com/2015/09/10/2139813/fraudit-failure/

Fraudit failure

Dan McCrum

| Sep 10 10:45 | 1 comment | Share

If you’re thinking about stock fraud, you don’t want to do it in the US where the SEC has both prosecutorial power and a desire to exercise it.

One other point to consider from the SEC’s latest prosecution: it is possible to pursue individual auditors for missing signs of fraud they should have caught, without destroying the audit firm in a repeat of the Arthur Andersen collapse.

Washington D.C., Sept. 9, 2015 — The Securities and Exchange Commission today charged national audit firm BDO USA with dismissing red flags and issuing false and misleading unqualified audit opinions about the financial statements of staffing services company General Employment Enterprises.The SEC also charged five of the firm’s partners for their roles in the deficient audits, and filed fraud charges against the client company’s then-chairman of the board and majority shareholder Stephen B. Pence, who is a former U.S. attorney and a former lieutenant governor of Kentucky.

See the release for the full details, BDO settled.

BDO agreed to admit wrongdoing, pay disgorgement of its audit fees and interest totaling approximately $600,000, and pay a $1.5 million penalty in addition to complying with undertakings related to its quality controls. The five partners also agreed to settle the charges against them. Two former CEOs of General Employment agreed to settle separate charges, and the litigation continues against Pence.

Note too the auditor responsibility as the SEC sees it.

Audit firms must train their audit and national office professionals not only to recognize red flags but also to have the resolve to refuse signing off on an audit if there are unresolved material issues,” said Andrew Ceresney, Director of the SEC’s Division of Enforcement. “BDO failed to do that here, even though these issues were elevated to the highest levels of its audit practice.”

Good luck with that.

SEC steps up enforcement actions against CPAs for cooking books

Francine McKenna

9 September 2015

MarketWatch

The Securities and Exchange Commission fined Bankrate Inc. (RATE, US)  $15 million to settle charges that it engaged in accounting fraud to ensure that its financial results met analyst expectations, Reuters reported on Tuesday. The company’s former Chief Financial Officer Edward DiMaria and former director of accounting Matthew Gamsey, were also sued. The litigation continues against DiMaria and Gamsey. Former vice president of finance Hyunjin Lerner settled for $180,045 settlement for his role in the scheme. The SEC accused the company and the finance officials of scheming to boost revenue and understate expenses to meet analyst targets for adjusted earnings before interest, taxes, depreciation and amortization for the second quarter of 2012.

That wasn’t the only accounting-related SEC enforcement action announced Tuesday.

An SEC news release said the agency had charged MusclePharm(MSLP, US) with omitting or understating nearly a half-million dollars’ worth of perks bestowed upon its executives, including approximately $244,000 paid to CEO Brad Pyatt related to automobiles, apparel, meals, golf club memberships, and his personal tax and legal services. Then-audit committee chair Donald Prosser became directly involved in the process, but MusclePharm continued filing financial statements that neglected to include the disclosures. Andrew J. Ceresney, Director of the SEC’s Division of Enforcement said in a statement, “Prosser, MusclePharm’s audit committee chair, subjected himself to liability when he substituted his wrong interpretation ofSEC rules for the views of experts the company had hired, resulting in an incorrect disclosure.” MusclePharm agreed to pay a $700,000 penalty and hire an independent monitor for one year among other undertakings. CEO Pyatt agreed to pay a $150,000 penalty, and Prosser and former chief financial officer L. Gary Davis Davis each agreed to pay $30,000 penalties. Davis and another former chief financial officer, Lawrence Meer, agreed to be suspended from practicing as an accountant on behalf of any SEC-regulated entities with a right to reapply after three and two years, respectively.

In an SEC press briefing on the actions, MarketWatch asked Ceresney if this was a trend, given the number of CPAs and accounting related charges yesterday. Ceresney said the agency is very focused on financial reporting issues and on accounting personnel, especially gatekeepers such as auditors and audit committee members.

BDO to Pay $2.1 Million to Settle SEC Charges over False and Misleading Audit Opinions

Michael Cohn

9 September 2015

Accounting Today Online

BDO USA has agreed to pay $2.1 million to settle charges from the Securities and Exchange Commission that the firm dismissed a number of red flags and issued false and misleading unqualified audit opinions about the financial statements of a staffing services company, General Employment Enterprises.

In addition to charging BDO, the SEC also charged five of the firm’s partners for their roles in the deficient audits, and filed fraud charges against the client company’s then-chairman of the board and majority shareholder Stephen B. Pence, who is a former U.S. attorney and a former lieutenant governor of Kentucky.

BDO agreed to admit wrongdoing, pay disgorgement of its audit fees and interest totaling approximately $600,000, and pay a $1.5 million penalty in addition to complying with undertakings related to its quality controls.

The firm was thereby able to avoid facing an administrative law judge at the SEC, where it had little chance of prevailing, and also avoid the higher costs of protracted litigation.

The five partners also agreed to settle the charges against them. In addition, two former CEOs of General Employment agreed to settle separate charges, and the litigation continues against Pence.

“Audit firms must train their audit and national office professionals not only to recognize red flags but also to have the resolve to refuse signing off on an audit if there are unresolved material issues,” said SEC enforcement director Andrew Ceresney in a statement. “BDO failed to do that here, even though these issues were elevated to the highest levels of its audit practice.”

BDO said it wished to maintain good relations with the SEC and cooperated with the investigation, helping uncover millions of dollars in funds. “

BDO USA places significant value on maintaining positive relationships with its regulators and is pleased to resolve these claims with the SEC relating to BDO’s 2009-2010 audits of General Employment Enterprises (GEE),” said the firm in a statement. “As stated in the SEC’s press release, two senior GEE officers and the chairman of the board misled BDO. Despite that, BDO’s actions significantly contributed to the return of the $2.3 million in diverted funds at the heart of the case and to the termination of GEE’s then CEO, who would later be identified as a co-conspirator in the diversion of the funds. BDO is committed to complying with all provisions of the agreement as it continues to perform high quality audits for public companies.”

According to the SEC, near the end of BDO’s 2009 audit of General Employment, BDO was advised by the company that $2.3 million purportedly invested in a 90-day nonrenewable CD wasn’t repaid by the bank upon its maturity date. BDO also learned that a bank employee indicated there was no record of a CD being purchased from the bank. The $2.3 million represented approximately half of the company’s assets and substantially all of its cash.

BDO then received multiple conflicting stories from company management and board members about the status of the purported CD, and the company received a series of deposits totaling $2.3 million from three entities unaffiliated with the bank. One entity was purportedly owned by Pence.

After BDO raised more questions, the company claimed the deposits were the proceeds of an agreement to assign the purported CD to an unrelated party in return for the value of the CD. However, BDO never received reasonable and coherent explanations about why the $2.3 million went missing and why an equivalent amount was later received by the company under suspicious circumstances.

BDO’s engagement partner on the audit, Sean C. Henaghan, and the concurring reviewer, John E. Rainis, subsequently consulted with senior BDO partners, including regional technical director James J. Gerace, national director of accounting Leland E. Graul, and national SEC practice director Wendy M. Hambleton.

BDO then issued a five-page letter to the company highlighting the conflicting information and demanding an independent investigation overseen by the audit committee.

But just days later despite no reasonable explanation from the company, BDO withdrew its demand and subsequently issued unqualified opinions on the financial statements included in General Employment’s 2009 and 2010 annual reports.

Without admitting or denying the SEC’s findings, Henaghan, Rainis, Gerace, and Graul agreed to be suspended from practicing public company accounting for varying periods. Henaghan agreed to pay a $30,000 penalty, Rainis agreed to pay a $15,000 penalty, and Gerace, Graul, and Hambleton each agreed to pay $10,000 penalties.

According to the SEC’s complaint filed against Pence in federal court in Manhattan, Pence made materially misleading statements and omissions to BDO audit professionals in response to questions about the purported $2.3 million CD and dubious related-party transactions.

Pence signed the company’s 2009 annual report despite knowing it included misleading statements and omissions about the missing $2.3 million and related-party transactions. Pence also created the false appearance that he was acting independently in his capacity as the majority shareholder and chairman of General Employment when in fact he was acting as an agent for a convicted felon named Wilbur Anthony Huff, who had funded Pence’s purported acquisition of a majority stake in the company.

Pence received at least a half-million dollars from Huff in 2009 and 2010 as well as a luxury Cadillac Escalade valued at approximately $50,000.

Huff has since received a prison sentence in a criminal action related to his intricate involvement in a wide-ranging conspiracy, which included misappropriating the $2.3 million in question from General Employment.

The SEC’s complaint charges Pence with violating the securities laws. The SEC is seeking permanent injunctions, disgorgement of ill-gotten gains plus prejudgment interest and penalties, and an officer-and-director bar.

The SEC separately charged former General Employment CEOs Ronald E. Heineman and Salvatore J. Zizza with making materially misleading statements and omissions to BDO. Without admitting or denying the findings, they consented to SEC orders requiring them to each pay $150,000 penalties.

“Company executives and board members have an obligation to tell auditors the complete truth about corporate events and transactions,” said Andrew M. Calamari, regional director of the SEC’s New York office.  “We allege that Pence misled auditors and investors while acting as a front man for a convicted felon who was actively scheming to misuse company funds.”

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